Zabel v. State
In Zabel v. State, 765 P.2d 357, 360 (Wyo. 1998), the victims were ten and thirteen years of age, and Zabel was charged with four counts of taking "immodest, immoral and indecent liberties with a minor."
A clinical psychologist who evaluated both victims, which evaluation included a "clinical interview," testified that in evaluating the "authenticity" of the victims' reporting, she looked for "emotionality linked to the reporting," "inconsistencies in the reporting," the "amount of anxiety around the reporting," "secondary gains" as a motive to fabricate, and antisocial tendencies. Id. at 358-59.
The psychologist further addressed specifically whether she observed any of these characteristics in either of the victims, essentially testifying that she observed the "characteristics" of a "child telling the truth" in both victims, as opposed to those characteristics of a child who is fabricating. Id. at 360.
The Court found that this testimony was directed "to whether the children were 'fabricating' and toward [the psychologist's] search for 'authenticity of the reporting,'" that it was "abundantly clear that she was discussing truthfulness criteria in connection with the victims' reports of the incidents of sexual abuse," and that she "led the jury through her truthfulness evaluation, including her conclusions." Id. at 361-62.
The Court also distinguished such testimony from testimony that we previously had found to assist the jury in "understanding some peculiar aspect of the victim's behavior" (i.e. "that most rape victims ask their assailants not to tell anyone about the incident," that "victims often delay in reporting sexual abuse or assault," and that it was "typical behavior" for an adolescent victim not to immediately flee the scene and report the incident). Id. at 360-61.
The Court concluded that, considering the circumstances present in Zabel, and especially that "the case turned on the question of whether the jury believed the" victims or Zabel, the error amounted to plain error. Id. at 362-63.